Smallwood v. State

Xavier SMALLWOOD v. STATE of Arkansas

CR 96-575                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 9, 1996


1.   Motions -- motion for directed verdict discussed -- issue here
     not properly preserved. -- A motion for directed verdict is
     treated as a challenge to the sufficiency of the evidence and
     requires the movant to apprise the trial court of the specific
     basis on which the motion is made; since the adoption of the
     Ark. R. Crim. P. 36.21(b), a general motion is insufficient to
     preserve a defendant's argument that the statutory elements of
     the crime were not proven; because appellant failed to
     properly preserve the issue, he was procedurally barred from
     challenging the sufficiency of the evidence on appeal. 

2.   Evidence -- credibility in issue when criminal defendant takes
     stand -- when the State may inquire about prior acts of
     misconduct. -- When a criminal defendant takes the stand in
     his own behalf his credibility becomes an issue, and the State
     may, under certain circumstances, test that credibility by
     asking the defendant about prior misconduct and criminal
     activity; pursuant to Ark. R. Evid. 608(b), the State may ask
     a criminal defendant about prior acts of misconduct,
     regardless of whether such conduct is criminal, if the act is
     clearly probative of the defendant's character for
     truthfulness; in addition, the State may, pursuant to Ark. R.
     Evid. 609, ask the defendant about any prior felony
     convictions, regardless of whether the crime involves an
     element of untruthfulness. 

3.   Evidence -- objections to questions about prior acts of
     misconduct -- preservation of issues for appeal. -- In order
     properly to preserve objections to questions about prior bad
     acts for appeal, the defendant must timely object at the first
     opportunity; in addition, the defendant must renew his
     objection each time he is questioned about the matter;
     finally, the defendant may not object if he has "opened the
     door" by discussing the matter during direct examination.  

4.   Evidence -- questions asked about previous burglary
     convictions -- failure to timely object waived issue on
     appeal. -- Where, during cross-examination, the State
     questioned appellant extensively about his burglary conviction
     and about an incident in which he threatened to shoot his
     mother, without objection by defense counsel, appellant's
     failure to timely object was a waiver of these issues on
     appeal.

5.   Evidence -- questions asked about drug sales -- failure to
     object at first opportunity constituted waiver on appeal. -- 
     Where the State asked about appellant's previous sale of drugs
     for a second time before he objected, appellant waived the
     right to raise this issue on appeal; by failing to object at
     the first opportunity, appellant waived his right to contest
     on appeal the questions regarding his prior drug sales.

6.   Evidence -- admission to gang involvement made on cross-
     examination -- counsel's failure to object precluded review on
     appeal. -- Where appellant admitted during cross-examination
     to membership in a gang that was involved in selling drugs and
     stealing cars and to making a statement that he would shoot
     anyone who threatened him, his counsel's failure to object to
     the questions precluded review of the issues on appeal.  

7.   Evidence -- appellant's own words opened door to questions
     about his propensity to violence -- trial court properly
     allowed appellee to question appellant about other violent
     acts. -- Where, on direct examination, appellant opened the
     door to any questions about his propensity towards violence by
     claiming that he was not the "type of person" to threaten
     someone with a knife, he placed his propensity towards
     violence in issue; the trial court properly allowed the State
     to question appellant about other violent acts or threats; 
     otherwise impermissible testimony may be offered when one
     party has opened the door for another party to offer it.

8.   Sentencing -- decision to impose consecutive or concurrent
     sentences up to trial judge. -- Pursuant to Ark. Code Ann. 
     5-4-403 the decision to impose consecutive or concurrent
     sentences lies solely with the province of the trial judge.  

9.   Sentencing -- request for concurrent sentences not supported
     by argument -- trial judge not required to set forth in
     writing that he has exercised discretion. -- Where appellant
     made no argument in his request for concurrent sentences and
     raised no argument on appeal, his contention that there was no
     way to evaluate the trial judge's decision, and therefore his
     proper use of discretion, because he did not explain his
     decision orally or in writing was rejected; there is no rule
     that requires a trial judge to set forth in writing that he
     has exercised discretion; since this is a matter within his
     discretion the court will not presume he did not exercise that
     discretion unless there is some indication otherwise;
     appellant did not meet his burden of showing that the trial
     court did not exercise discretion in deciding to impose
     consecutive sentences.


     Appeal from Nevada Circuit Court; Tom Keith, Judge; affirmed.
     Scott S. Freydl, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Andree Layton Roaf, Justice.
     Xavier Smallwood was convicted by a jury of rape and burglary
which were committed when he was fifteen years of age.   He was
sentenced to forty years' imprisonment for the rape, and ten years'
imprisonment for the burglary.  On appeal, Smallwood alleges that
there is insufficient evidence to support his convictions, that the
State should have been prohibited from questioning him about prior
misconduct, and that he should have been sentenced to concurrent,
not consecutive, terms.  We affirm.
     On the morning of December 15, 1994, the victim returned home
from working the night shift.  As she entered the bedroom,
Smallwood jumped out from behind the door, placed a butcher knife
to her throat, and demanded that she remove her clothing. 
Smallwood threatened to kill her when she refused.  The woman
agreed to remover her clothing if she could first use the bathroom. 
While in the bathroom, she attempted to call her parents on a
cordless telephone, but apparently Smallwood had cut the telephone
line.  Smallwood forced the woman into the bedroom, and again
demanded that she remove her clothing.  The victim begged Smallwood
to use a condom so that she would not get AIDS or become pregnant. 
Smallwood used a condom provided by the victim and raped her twice.
     After the rape, Smallwood told the victim that he had tried to
talk to her before but she would not speak to him, and that he was
already in trouble for a prior burglary.  Smallwood showed the
victim were he had broken a porch window and cut a screen to obtain
entry into her home.  As he left the victim's home, Smallwood
threatened to rape her again and kill her family if she told anyone
about the incident.  Smallwood left on a bicycle and took the
butcher knife with him.
     The victim immediately called her family, and her mother
notified the police.  The victim described Smallwood and the
clothes he was wearing to the police.  The victim also described
the knife taken by Smallwood as her rusty butcher knife with "Old
Hickory" written on the handle.
     The police suspected Smallwood from the victim's description,
and located him within a few hours, hiding in the woods behind his
home and wearing the clothing described by the victim.  In
addition, the police found a butcher knife inscribed with the words
"Old Hickory" lying on the table inside his house.  At the time of
his arrest, Smallwood told officers that he had consensual sex with
the victim.  The victim identified Smallwood as her attacker during
a photo line-up and at trial.
     Smallwood testified at trial and admitted to having sexual
relations with the victim on December 15, but claimed that the two
had been engaged in a consensual sexual relationship for about two
years.  Smallwood further alleged that the victim brought charges
against him only because he told her that she was getting fat and
that he intended to end their relationship.  Finally, Smallwood
claimed that the knife belonged to his mother and that he last saw
it the day before the incident.
     At trial, defense witnesses testified that Smallwood was a
cousin of the victim's husband, from whom she was separated, and
that Smallwood and the victim knew each other.  Smallwood's mother
testified that she had gone to school with the victim, and that the
victim knew Smallwood when he was a baby, but that Smallwood had
moved to Illinois when he was about ten years old.  However, the
victim denied having a consensual sexual relationship with
Smallwood and testified that she had never seen him prior to
December 15.
     The jury found Smallwood guilty of both crimes and sentenced
him to ten years imprisonment for burglary and forty years for
rape.  The judge denied Smallwood's request for concurrent terms,
and ordered the sentences to be served consecutively.
                 1.  Sufficiency of the Evidence
     Smallwood first argues that there is insufficient evidence to
support his convictions for rape and burglary.  At the close of the
State's case, Smallwood said:  "Judge, may I let the record reflect
that I move for a directed verdict at the end of the State's case?" 
The court denied the motion.  At the close of all evidence,
Smallwood renewed his motion by stating:  "Will the Court let the
record reflect that my motion is renewed?"  Again, the motion was
denied.
     A motion for directed verdict is treated as a challenge to the
sufficiency of the evidence and requires the movant to apprise the
trial court of the specific basis on which the motion is made. 
Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).  This court
has said on numerous occasions that since the adoption of the Ark.
R. Crim. P. 36.21(b), a general motion is insufficient to preserve
a defendant's argument that the statutory elements of the crime
were not proven.  Id.  Because he failed to properly preserve the
issue, Smallwood is procedurally barred from challenging the
sufficiency of the evidence on appeal.  Whitney v. State, 326 Ark.
206, 930 S.W.2d 343 (1996).
                      2.  Prior Misconduct
     Smallwood next argues that the trial judge erred by allowing
into evidence testimony regarding his burglary conviction,
involvement with drugs, theft of automobiles, propensity towards
violence, and participation in gang activity.
     It is well-settled under Arkansas law, that when a criminal
defendant takes the stand in his own behalf his credibility becomes
an issue, and the State may, under certain circumstances, test that
credibility by asking the defendant about prior misconduct and
criminal activity.  Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979).  Pursuant to Ark. R. Evid. 608(b), the State may ask a
criminal defendant about prior acts of misconduct, regardless of
whether such conduct is criminal, if the act is clearly probative
of the defendant's character for truthfulness.  Ark. R. Evid
608(b); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In
addition, the State may ask the defendant about any prior felony
convictions, regardless of whether the crime involves an element of
untruthfulness.  Ark. R. Evid. 609.
     In order to properly preserve these issues for appeal, the
defendant must timely object at the first opportunity.  Hill v.
State, 285 Ark. 77, 685 S.W.2d 495 (1985).  In addition, the
defendant must renew his objection each time he is questioned about
the matter.  Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). 
Finally, the defendant may not object if he has "opened the door"
by discussing the matter during direct examination.  Larimore v.
State, 317 Ark. 111, 877 S.W.2d 570 (1994); Dillion v. State, 317
Ark. 384, 877 S.W.2d 915 (1994).
     During cross-examination, the State questioned Smallwood
extensively about his burglary conviction, and an incident in which
he threatened to shoot his mother, without objection by defense
counsel.  Hence, Smallwood's failure to timely object is a waiver
of these issues on appeal.  Hill, supra.  When the State then began
to ask Smallwood about his prior involvement in drug sales, the
following exchanged occurred:

     STATE:  You've been pretty active in criminal activity?

     SMALLWOOD:  Yes, I have.

     STATE:  Selling drugs?
     
     SMALLWOOD:  That's irrelevant but yes, I was a thug.

     STATE:  You happened to be selling drugs prior to his
     incident?

     DEFENSE COUNSEL:  Judge, that's not material to this case.
The trial court overruled the objection.  The defense counsel
waited until after Smallwood had answered, and the State asked the
question a second time before he objected.  By failing to object at
the first opportunity, Smallwood waived his right to contest on
appeal the questions regarding his prior drug sales.  Hill, supra.
     Furthermore, Smallwood later admitted during cross-examination
to membership in a gang that was involved in selling drugs and
stealing cars while he was in Illinois, and to making a statement
that he would shoot anyone who threatened him.  Once again, his
counsel's failure to object to the questions precludes review of
the issues on appeal.  Hill, supra.
     Moreover, on direct examination Smallwood opened the door to
any questions about his propensity towards violence during the
following exchange:

     ATTORNEY:  Did you threaten [the victim] with a knife or
     with anything?

     SMALLWOOD:  No, I didn't threaten her with a knife.  I'm
     not that type of person.  I didn't threaten her with a
     knife.
(Emphasis added.)
     This court has recognized that a defendant may "open the door"
to an otherwise impermissible inquiry in Larimore, where we said:
     We have recognized that otherwise inadmissible testimony
     may be offered when one party has opened the door for
     another party to offer it.  This is most often permitted
     when a defendant has been untruthful about a former crime
     or has brought up otherwise inadmissible character
     evidence which the State may then rebut.
Larimore, supra (emphasis supplied).  By claiming that he was not
the "type of person" to threaten someone with a knife, Smallwood
placed his propensity towards violence in issue.  Thus, the trial
court properly allowed the State to question Smallwood about other
violent acts or threats.  Larimore, supra; Dillion, supra.
                    3.  Consecutive Sentences
     For his last argument, Smallwood contends that the trial judge
erred when he ordered consecutive, instead of concurrent,
sentences.  After the jury sentenced Smallwood to ten years for
burglary and forty years for rape, Smallwood simply asked the court
to consider the running of the sentences concurrently.  The State
then argued for consecutive terms because the crimes were not
simultaneous and were "separate offenses."  Smallwood made no
response to the State's argument.  The judge denied Smallwood's
request and ordered consecutive sentences without comment.
     The State alleges that Smallwood has not preserved the issue
by failing to object after the imposition of consecutive sentences. 
However, Smallwood's motion for concurrent sentences was denied and
neither of the cases relied upon by the State supports the argument
that a further objection is required after the denial of a motion
for concurrent sentences.  In Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1980), we said that the appellant could not raise an
argument for concurrent sentences not offered as a basis for his
objection at trial.  Wicks v. State, 270 Ark. 781, 606 S.W.2d 366
(1980) involved a conviction for a single offense, and the opinion
set out several exceptions to the general requirement that an
objection first be made to the trial court for an issue to be
preserved for appeal.
     As to the merits, this court has stated on numerous occasions
that pursuant to Ark. Code Ann.  5-4-403 the decision to impose
consecutive or concurrent sentences lies solely with the province
of the trial judge.  Love v. State, 324 Ark. 526, 922 S.W.2d 701
(1996).  Moreover, the appellant, by challenging this
determination, assumes the heavy burden of showing that the trial
judge failed to give due consideration in the exercise of his
discretion.  Id.  
     Smallwood made no argument in his request for concurrent
sentences and raises no argument on appeal.  Smallwood contends
only that there is no way to evaluate the trial judge's decision,
and therefore his proper use of discretion, because he did not
explain his decision orally or in writing.  However, we rejected a
similar argument in Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218
(1981) where we held that:
     there is no rule that requires a trial judge to set forth
     in writing that he has exercised discretion.  Since this
     is a matter within his discretion we will not presume he
     did not exercise that discretion unless there is some
     indication otherwise.
Id.  Smallwood has not met his burden of showing that the trial
court did not exercise discretion in deciding to impose consecutive
sentences.
     Affirmed.
     Brown, J., concurring.
=================================================================
          Robert L. Brown, Associate Justice, concurs.

     I concur in the result but write separately to express my
concern with the holding that appellant's counsel did not object in
a timely manner to the prosecutor's questions regarding prior
involvement in drug sales, per the colloquy set out in the majority
opinion.  While the case relied upon for this result, Hill v.
State, 285 Ark. 77, 685 S.W.2d 495 (1985), did hold that an
objection must be made at the first opportunity, that case involved
an untimely objection made after eight questions had been asked on
the subject.  In this case, appellant's counsel objected before the
second question was answered, and given the realities of trial
practice, the application of the rule to these facts is too
technical.  However, I concur in the result, as Smallwood later
admitted on cross-examination, without objection, to membership in
a gang involved in selling drugs.  The line of questioning objected
to, if error, was undoubtedly harmless.